Richards and Young

[2012] FamCA 382

FAMILY COURT OF AUSTRALIA

RICHARDS & YOUNG [2012] FamCA 382

FAMILY LAW - CHILDREN - With whom a child communicates – where the father suffers from a complex spectrum of psychiatric illness and the father’s behaviour has caused great distress to the mother and the children since final parenting orders were initially made in 2006 – whether the father should have any communication with the children and have access to information about their schools and extra-curricular activities – where the expert evidence supports the maintenance of communication between the children and the father only on the basis that the communications are initiated and managed by the children

APPLICANT: Mr Richards

RESPONDENT: Ms Young

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: SYC 7578 of 2010

DATE DELIVERED: 17 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9, 10, 11 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Branson QC

SOLICITOR FOR THE APPLICANT: Mark MacDiarmid Family Law Specialist

COUNSEL FOR THE RESPONDENT: Mr Waterman

SOLICITOR FOR THE RESPONDENT: Delaney & Delaney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

Orders

IT IS ORDERED

1. That all previous Orders are discharged.

2. That the Mother shall have sole parental responsibility of all issues in relation to the children, K, born … September 1996, A, born … March 1998, and J, born … November 1999. (“the children”).

3. That the children shall live with the Mother.

4. That the children shall spend no time with the Father.

5. That the Father be restrained and an injunction issued, preventing him from directing his agents (including but not limited to his relatives, friends, colleagues and associates), from spending time and communicating with the Mother and/or the children in any way whatsoever.

6. That the children are at liberty to initiate communication with the Father by way of telephone voice calls, telephone text messages, emails, cards or letters.

7. That the Father shall not initiate any communication with the children either directly or indirectly.

8. That the Father may send cards and/or gifts to the children on their birthdays and at Christmas.

9. That the Mother shall authorise and instruct children’s schools to provide the Father with copies of the children’s school reports by prepaid post addressed to the Father at … .

10. That the Father shall not attend the children’s schools or extra-curricular activities and otherwise shall not have any direct or indirect contact with the children’s schools or extra-curricular activities.

11. Until the youngest child attains the age of 18 years the Father be restrained and an injunction issued, preventing him from communicating with the Mother in any way directly or indirectly and from attending near or at her current residence and her current workplace, and the Mother shall notify the Father of any change of her residential or workplace address within 7 days of such change.

12. Until the youngest child attains the age of 18 years  the Father be restrained and an injunction issued, from entering the suburb in which the Mother resides with the children and the Mother  shall notify the Father within 7 days if she moves to another suburb.

13. That the Mother be permitted to apply for and obtain passports in the names of the children, without the consent of the Father.

14. That the Father be and is hereby restrained from applying for or obtaining a passport in the names of the children.

15. That the children be permitted to leave the Commonwealth of Australia with the consent of the Mother only and without the consent of the Father.

16. That the Father is restrained from removing and/or causing or allowing the children to be removed from the Commonwealth of Australia.

17. That the Commissioner for the Australian Federal Police and the Secretary of the Ministry of Immigration is requested to take all steps to immediately remove the children’s names from the airport watch list, also known as the PACE alert system, at all points of arrival and departure in the Commonwealth of Australia.

18. The Father shall be and is hereby restrained from issuing, initiating, filing and/or causing any further proceedings in any Court with respect to children’s issues under the Family Law Act 1975 (Cth) without leave of the Court.

19. That the Independent Children’s Lawyer shall provide a copy of these Orders to all of     the schools attended by the children.

20. The mother is at liberty to provide a copy of these orders to any person or organisation conducting any extracurricular activities in which the children or any of them are involved.

21. The mother is at liberty to provide a copy of these Orders to any member of any Police Force.

22. That the Mother shall make the children available for the Independent Children’s Lawyer to explain to the children the effect of these Orders.

23. That the Independent Children’s Lawyer shall provide the children with the Father’s:

    a.   Current residential address, which is: … ;

    b.   Email address, which is: … ;

    c.   Mobile telephone number, which is: … ;

    d.   The name, address and contact details of the Father’s solicitor presently on the Court record.

24. The Independent Children’s Lawyer shall inform the children about organisations that could assist them in respect to their relationship with their father.

25. That the Independent Children’s Lawyer be discharged upon compliance with Orders 19, 23 and 24.

26. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Young has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7578  of 2010

Mr Richards

Applicant

And

Ms Young

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the court relate to three children now 15 years, 13 years and 12 years of age. The parents separated in 2005 and the children have lived with their mother since that time. Orders were made in relation to the time the children spend with their father after a defended hearing before Coleman J in 2006 and again after a defended hearing before Rose J in 2009. When the matter came before me, the father was not spending any time with the children or having any other contact with them.

2. The application of the father sought very limited contact with the children and is set out in full below:

   1.        That all prior parenting Order be and are hereby discharged.

   2.That the mother have sole parental responsibility for the children [K] born […]/9/1996, [A] born […]/3/1998 and [J] born […]/11/1999 (‘the children’).

   3.That the children live with the mother.

   4.That other than is provided for elsewhere in these Orders, the children spend no time with the father.

   5.That within 14 days of the date of these Orders the Independent Children’s Lawyer explain to the children the effect of these Orders and inform them that, should they choose, they are at any time free to communicate with the father by any means, including telephone, SMS, letter or email.

   6.That the father may send cards or gifts to the children on their birthdays and at Christmas, and within a reasonable time of receipt of same the mother shall provide written acknowledgement of such receipt to the father.

   7.That the children be permitted by the mother to telephone the father on his birthday and father’s day, and that the father be permitted to telephone the children on their respective birthdays.

   8.That the mother shall provide and continue to provide the necessary authorities to ensure that all school reports, extra-curricular activities report and school magazines are forwarded directly to the father by the children’s schools.

   9.That the mother facilitate the children contacting and being contacted by the father’s extended family.

3. The mother sought more restrictive orders and, in particular, opposed the father’s having any communication with the children and opposed his having access to information about their schools and extra-curricular activities.

4. Thus the issues before me for determination were very limited and these reasons will deal only with the matters which remained in dispute between the parents after the first day of hearing.

5. When the hearing commenced, the father was represented by Queen’s Counsel and his solicitor, and the mother and the Independent Children’s Lawyer each appeared by Counsel.

6. It was common ground, and clearly stated by Queen’s Counsel for the father at the commencement of the hearing, that the father suffers from a complex spectrum of psychiatric illness. In her affidavit, the mother gave a detailed history of the manner in which the father’s behaviour had caused great distress to her and to the children over a long period commencing after the Orders of Coleman J in 2006.

7. The mother’s evidence, set out in her affidavit, was not challenged by Queen’s Counsel for the father and I was invited to accept her version of the events which had occurred.

8. It was greatly to the father’s credit that he recognized the effect of his illness and his consequent behaviour on the children and limited his application as he did.

9. The mother’s case was that she is physically, emotionally and financially exhausted by the effect of the father’s behaviour, not only on the children but on her.  She could see no way of containing the situation, other than to completely remove the father from the children’s lives and from hers. Her position was understandable when one reads her evidence.

10. A number of the restrictions that the mother sought were agreed by the father through his Queen’s Counsel. In particular the father conceded that it was appropriate to make orders that allowed the children to travel outside Australia; that he be restrained from entering the suburb where the mother and the children live; that he be restrained from contacting the mother; that he be restrained from attending at the children’s schools and extra-curricular activities; and that it was appropriate to require the father to seek leave to initiate any further proceedings in relation to the children.

11. The matters which then remained in dispute were whether there should be any contact initiated by the father or by members of his family and whether the father should have access to information about the children’s schooling and extra curricular activities.   

12. Dr L prepared two reports, dated 14 August 2008 and 14 November 2011. He attended and was cross-examined on the first morning of the hearing. After hearing Dr L’s oral evidence, the parties commenced discussions and eventually asked if the matter could resume at 10.00 am the following day when they were hopeful of having agreement.

13. On the second day of the hearing, the father did not attend. His solicitor informed the court that the father had given instructions that his application not be prosecuted and that he did not wish to participate further in the proceedings.

14. I was informed that an agreement had been reached between the mother and the Independent Children’s Lawyer and I received a Minute of Orders proposed.

15. I requested of the father’s solicitor that he inform the father that the matter would be adjourned until 10.00 am on the following day and that, if the father did not appear, it was proposed that the matter be dealt with in his absence and that orders be made in accordance with the Minute of Orders.

16. When the matter resumed on the third day, the father did not attend. The father’s solicitor sent to the court a letter setting out his communications with the father by telephone, by text and by email attaching a copy of the Minute of Orders. The solicitor advised that the father pointed to an error in the recording of the father’s email address in the Minute of Orders. I am satisfied that the father was aware that the matter was proceeding and that orders would be made in accordance with the Minute if he did not appear to be heard to the contrary.

17. It is greatly to the mother’s credit that the orders agreed upon between her and the Independent Children’s Lawyer reflect the recommendations and the evidence of Dr L.

18. Where the orders contain provisions sought by the mother, they are provisions to which the father agreed through his legal representatives. The scheme of the father’s contact with the children is largely in accordance with his proposal except where Dr L recommended variation.

19. Thus the orders provide for the children to initiate contact with the father by any means but not for him to initiate contact with them except for sending cards and gifts on their respective birthdays and Christmas. 

20. Dr L, in his oral evidence, was asked to consider the father’s proposals for contact with the children. He supported the maintenance of communication between them, but only on the basis that the communications were initiated and managed by the children. He did not support there being any communication initiated by the father, even to the very limited extent that the father sought, that is, that he be permitted to telephone them on their birthdays.

21. Dr L emphasised that the children should be free to communicate with their father but not required or forced to do so.

22. Dr L gave evidence that it would, on balance, be a positive experience for the children to receive gifts and cards from their father. Dr L said that it is important that the father’s messages to the children be contained and not excessive and do not overwhelm the children as they have in the past. He noted that at the time of his most recent assessment, the father wrote messages to the children emphasising his love for them and his respect for their past experiences of his overwhelming behaviour. He also said that the children would be able to manage their communication with the father and were quite able to discard and not read any message from him that they found overwhelming.

23. Dr L said that the children would seek to re-establish a relationship with their father when they were older and that the process would be assisted by his having some knowledge of their progress at school and of their other activities.

24. Dr L did not support the father’s application for an order that the mother encourage the children to have contact with paternal relatives and I do not propose to make that order.

25. I will not set out the whole of Dr L’s oral evidence but the parties both had the benefit of hearing what he had to say and the orders which have been agreed to by the mother and the Independent Children’s Lawyer reflect his evidence.

26. I am satisfied that the regime agreed by the mother and the ICL, which embodies almost the whole of the scheme proposed by the father and is combined with the orders, sought by the mother, to which the father consented, allows the children to maintain their relationship with their father to the maximum extent that is consistent with their welfare.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 May 2012.

Associate: 

Date:  17 May 2012